Judicial precedent Flashcards
Define a precedent
Precedent = decision by a judge
When would courts follow a precedent
where the point of law in a previous case and the current case is the same
What are the 2 types of precendent
Binding precendent and Persuasive precedent
Types of precedent
Describe a binding precedent
Decision in an earlier case and in a higher court that must be followed in lower courts
- needs a court higherachy to work
Types of precedent
Describe a persuasive precedent
Decision that does not have to be followed by later cases
persuasive precedents may:
- come from court that don’t bind like Privy Council
- come from courts lower down the hierarchy
Practise Statement 1966
What is the purpose of the Practise Statement
Supreme Court replace the House of Lords in 2009
Supreme Court uses the practice statement so it doen’t have to follow previous decision
Allows proper development of the law
Law Reporting:
What is the purpose of law reporting previous decisions
Record of decisions made in a case word for word that is then published.
Accuracy is overseen by independant lawyers as these record underpin the whole principle of precedent
Operation of judicial precedent: Following, Overruling and Distinguishing
What 3 options do judges have when faced with a precedent in an earlier case
Follow it
Overrule it
Distinguish it
Operation of judicial precedent: Following, Overruling and Distinguishing
Explain ‘follow’
the same principle is applied by the judge to the current case
Operation of judicial precedent: Following, Overruling and Distinguishing
Explain ‘Overrule’
Court in a later case states the decision in the previous case was wrong,
Occurs when a higher court overrules decision made in an earlier case by a lower court
Operation of judicial precedent: Following, Overruling and Distinguishing
Explain ‘distinguish’
judge avoids following a precedent
happens when judge feels like facts of previous case are different to current case, setting precedent for a distinction between the 2
Advantages of Judicial precedent
Flexibility -bad precedents can be avoided using the Practice Statement
The law can evolve to meet changing attitudes of society - exmaple in R v R 1991 of establishing an offence of rape within marriage
Disadvantages of Judicial precedent
Complexity - judgments are very long and difficult to read, it’s not always easy to identify ratio decidendi and obiter dicta
